Although everyone should have an estate plan, I am constantly amazed at how many people procrastinate about following through with this key responsibility. When I was new to the practice of law, it was much easier for me to look at the planning that many people fail to do, and dismiss it as irresponsibility and selfishness, but nearly a decade and a half of practicing law has softened my perspective, and I have an empathy for people who haven’t yet executed documents that will make life easier for those they leave behind when they pass away. This is due in large part to some of the things I have had clients tell me when they have come in to start the process. There are many different reasons why estate planning is not a high priority for a lot of people, but they generally fall into one of three categories: The fear of confronting one’s own mortality, fear about the cost, and struggles with family conflicts and/or a desire to be “fair” with all of the children.

The Fear of Confronting One’s Own Mortality

After witnessing how this obstacle affects people, I am convinced that for many of them, it is an unconscious and reflexive reaction. The last thing that most twenty- or thirty-somethings want to think about is the idea that they could be dead tomorrow. This may be because of busy lives, with jobs, and kids, and obligations, and hobbies. It might be because they are still young, and healthy, or believe themselves to be healthy, and for many people, that patina of the invincibility of youth might not lose its luster until middle-age, and its aches and pains that don’t go away, or the sudden loss of former classmates and peers injecting the inevitability of death into the forefront of their thinking. After talking with several long-time life insurance salespeople I know, I tend to believe that there is something to this perspective.

When middle-age comes, some react by retreating farther from the idea of estate planning, and always seem to find reasons to procrastinate and not make decisions, sometimes to the consternation of their spouse, who may have a newfound desire to address these issues, if only to find a measure of peace in knowing that there is a plan, and with it, the comfort of knowing that they will not be at the mercy of statutory schemes which might not reflect the promises and expectations underlying their relationship.

Others surrender to the knowledge that life always ends, and that sometimes, it is sudden, and unexpected. I have observed that these people are often motivated a maturity and a deep enough love for their families to want to make that time as easy as possible, and perhaps also to leave a legacy for the future.

Fear About The Cost

As a now middle-aged person with two kids of my own, I understand the reluctance to agree to have an attorney sit down and prepare a set of documents at a cost of hundreds of dollars an hour with apparently no cap the eventual cost. One of the wonderful contradictions about estate planning is that while every time I draft someone’s documents, those documents are unique, because they are tailored to their situation and their desired outcome. But. in most cases, I also know exactly how much it should cost, because the means of getting there is often substantially similar to others I have drafted. Still, it doesn’t really matter how you explain this to a client, because they understand that they might have the one set of documents that takes longer, and if you quoted a range, their memory will always gravitate toward the low end. Recently, after years of consideration, I made the decision to offer flat fee estate planning documents for “simple” estates…a circumstance that I discuss thoroughly with clients after reviewing their particulars, because sometimes they believe their estates to be “simple”, when they really aren’t. The fact is, after considering it, the fee structure works out to what the client probably could have expected to pay for me to prepare the documents on an hourly basis, but I also understand how the certainty of knowing exactly what they are going to pay can be a selling point. Every now and then, I will get someone who believes that the cost for preparing “simple” or modest estate plans is still too much. This is an objection that I understand, and it is why I often try to put it in perspective. I recently had a brake job done on my car. It was something that needed to be done, and I did it because it had a tangible benefit not only for myself, but for my wife and children. Getting your estate planning done is something that you would do for the same reasons, and the cost was actually pretty close to being the same.

For people who have more complex estates, the costs will be greater, and flat fees aren’t necessarily an option. But there is usually more at stake, and not planning accordingly can mean paying taxes that might have otherwise been avoided (and the need to sell assets in order to pay those taxes), and an end result that wasn’t what anyone wanted, along with the insult of greater than average probate costs incurred in the injury of that conclusion. In these situations, I generally find that the clients understand that the cost is a legitimate expense of getting their affairs managed properly.

Struggles With Family Conflicts and/or A Desire To Be “Fair” With All of the Children

This is the obstacle that I have the most empathy for, probably because I have children of my own, and until I did, I couldn’t really understand the old saying “You love all your children equally, but you love each one of them differently.” I have spent countless hours with parents who struggle with sussing out how to be fair with each child, while being keenly aware of the strengths and weaknesses of each. This is a dilemma made more difficult for parents who own businesses, because often, there may be one of more of the children who have no interest in the business, but that is where the bulk of the wealth of the family is centered, and one or more of the children have an active interest and role in the day-to-day operations of the business. These are situations which require the attorney to present several options to the parents, and to help the evaluate each one before deciding on one.

Sometimes, I see parents struggling with how a child is living their life. It might be an issue with the child being a spendthrift. It might be that the parents deeply disapprove of the child’s spouse. It might be a history of conflict with the child, that may or may not include some violent episodes. It might be alcoholism or drug use. It might be the child’s sexual orientation. Any one of these can cause a great deal of anguish for parents who are struggling to finalize estate plans. I’ve heard the pain in a parent’s voice when they describe the reason why they are struggling with trying to treat a child equally with the rest of their children. Sometimes, I can help them feel a little better about that burden, by offering an option whereby a more responsible sibling can be made trustee of the spendthrift’s share, or through the creation of a testamentary trust which will keep the addicted child from receiving a lump sum which will be lost in a binge which may also take their child’s life. I have shared the agony of parents who have disinherited children because of conflicts or irreconcilable differences, which the parties have been unable or unwilling to resolve. And I have come to understand that even for the ones who don’t appear to have struggled at all with such a decision carry the weight of that decision as a private wound.

One of the many lessons I have learned in years of practice is that everyone should have an estate plan, not only to deal with their own death, but to make sure that someone they trust has the ability to make medical and financial decisions on their behalf if they become temporarily or permanently disabled. The nature of any of the contingencies that a decent estate plan would address are usually the kind for which people can find reasons to procrastinate, but if deciding for yourself isn’t reason enough to take care of this important task, providing the peace of mind of an actual plan for your loved ones should be.